Below is my column in The Hill on the news that Donald Trump will not be charged with campaign funding violations related to payments to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump wasn’t questioned or even charged with incitement crimes. Various members and legal experts have claimed that the prosecution is clear at first glance. The crime occurred in public over a month ago, but there is no evidence of prosecution. Why? It is probably not because the prosecutor thinks this is too easy.
Here is the column:
Donald Trump is possibly the most convicted man never to be charged in America. According to Media reportsThe Justice Department has decided not to charge Trump with campaign funding violations related to hiding money on former stripper Stormy Daniels. What has been touted as a slam dunk criminal complaint by many experts has now joined a long list of suspected crimes that were once nightly cable news.
The separation between legal analysis and legal reality hardly plays a role in today’s media. Many of the same experts are now trumpeting charges of criminal incitement to the January 6th Capitol uprising. In their eyes – unsurprisingly – it’s another open case. For the past four years they have been delivering a series of allegations, all of which are considered conclusive to satisfy the voracious appetites of readers and viewers. The campaign finance fee was actually one of the more credible claims as former Trump attorney Michael Cohen pleaded guilty. However, such crimes are notoriously difficult to prosecute, as evidenced by the failed prosecution of former presidential candidate John Edwards in 2012.
Many of these alleged crimes have been presented as reassuringly simple and straightforward. Former Washington Post prosecutor and columnist Randall D. Eliason insisted that Trump committed bribery in the Ukraine scandal because “allegations of improper consideration are just another way of saying that there was a bribe … it is bribery, if something is sought in return corrupt intent, if the president is not pursuing legitimate US policies but wrongly calling for measures by Ukraine that would benefit him personally. “It didn’t matter that the Supreme Court flatly rejected such sweeping interpretations of bribery, extortion and related political corruption. Others alleged Trump committed “criminal bribery” by raising funds for Republican senators when he was about to be indicted.
Former CNN legal analyst and former House impeachment officer, Norm Eisen, alleged that in not responding to Russian aggression, Trump was “playing in sight” and the criminal case against him for obstruction of justice was “devastating”. That was in 2018.
Former Watergate prosecutor Nick Ackerman said Donald Trump Jr.’s emails about meeting Russians at Trump Tower were “almost a smoking cannon,” adding, “there is almost no question that this is treason . ” Professor Richard Painter claimed a clear case of treason. Harvard professor Laurence Tribe explained Trump’s dictation of a misleading statement about the Trump Tower meeting as witness manipulation; Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion, and possible treason by Trump or his family.
Experts now claim that Trump’s January 6th speech was clearly criminal incitement. Elie Honig, a legal analyst at CNN, said, “As a prosecutor, I would like to show Trump’s own inflammatory testimony to a jury and argue that they cross the line into crime.” Richard Ashby Wilson, dean of the Associate Law School at the University of Connecticut, said: “Trump crossed the Rubicon and instigated a mob to attack the US Capitol as Congress was counting the vote of the electoral college. He should be prosecuted for instigating an uprising against our democracy. “
Many quickly reiterated their certainty about another crime. Tribe stated, “In addition to instigating imminent lawless action, this guy instigated the forcible beheading of a coordinated branch of government to prevent this peaceful transfer of power and bring a violent mob into the Capitol while cheering them on.” District of Columbia Attorney General Karl Racine backed these claims, saying he was investigating Trump over a possible incitement to incitement.
What is strange is that there is not a word of an interview, let alone an indictment of an alleged outright crime that was committed more than a month ago. One possible reason is that it would collapse in court. It is much easier to seek simple prosecution than prosecution of charges made for television. I don’t accuse experts of speculating on such a case – but many reiterate that prosecution would be relatively easy. That’s just not true.
The problem is freedom of speech. Trump’s January 6 speech would fail the Brandenburg v Ohio test, where the Supreme Court said even “advocating the use of force or violating the law” is safe unless it is imminent. Trump did not call for the use of force, but called on people to protest “peacefully” and “cheer on” their allies in Congress. Later – and too belatedly – he repeated this after the outbreak of violence and urged his supporters to respect and obey the Capitol Police.
Racine has shown how far these theories are from case law. He noted that Trump failed “to reassure them or at least emphasize the peaceful nature of what protests must be”. Aside from Trump ordering them to protest peacefully, his failure to calm a crowd is not criminal incitement by omission.
Trump remains liable – largely the same threats that existed prior to his tenure as president, in the form of banking, tax, and business investigations. But the litany of crimes, suspected breathlessly for the past four years, has passed without charge. Even so, experts have lined up to argue that there are no speaking or legal barriers to prosecuting Trump for incitement.
There is now a difference, however: there is no longer any excuse that Trump could not be charged in office (which I don’t think is true) or that he would just forgive himself (which, despite his predictions, he did not do). What was conveniently hypothetical may now be actual law enforcement. If criminal incitement is this strong case, go for it – blame him. Of course, such law enforcement actions could come at a cost. Unless there are direct intentions, Trump will likely prevail in court or on appeal. He could then not only justify a federal lawsuit, but also his second impeachment.
There is no crime of inciting legal analysts who exaggerate or oversimplify criminal law. The public can be frenzied with allegations of simple law enforcement or slam dunk charges. Many people are addicted to anger and these claims, while illusory, fuel that addiction. It’s all entertainment until someone actually tries to prosecute – and then reality sets in.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney during impeachment in the Senate. He was called by the House Republicans as a witness at the impeachment negotiations of Bill Clinton and Donald Trump and has consulted with Senate Republicans on impeachment legal precedents prior to the ongoing trial. You can find him on Twitter @JonathanTurley.